Jagat Ram Trehan And Sons vs Dda
2005 Latest Caselaw 1468 Del

JUDGMENT

Sanjay Kishan Kaul, J.

Page 2117

IA 6749/1997 (U/Sections 30 and 33 of the Arbitration Act)

1. The respondent-DDA awarded a contract to the petitioner for construction of 416 houses in category II along with garages under SFS scheme at Alaknanda under the agreement No 15/HD XXI/A/82-83. Disputes arose bewteen the parties and in view of the arbitaration clause 25 between the parties, Engineer-Member-DDA appointed Sh K D Bali as the sole arbitrator to decide the disputes between the parties.

2. At the inception of the hearing of the objections, it was put to the learned counsel for the respondent that his submissions must be confined to the parameters of section 30 and 33 of the Arbitration Act, 1940. In this behalf it has to be appreciated that this court does not sit as a court of appeal against the award of an arbitrator and merely because this court may come to a different view on appreciation of evidence, would be no ground to interfere with an award. The arbitration remedy was provided as an alternative remedy for settlement of disputes and the challenge was restricted in terms of the provisions of the said Act. In this behalf, judgment of the apex court in Gujarat Water Supply and Sewerage Board v. Unique Erectors (Gujarat) (P) Ltd. and Anr., and Food Corporation of India v. Joginderpal Mohinderpal and Anr., Page 2118 may be referred where it was clearly stated that unless the award is contrary to law, and misconduct is with reference to either the personal misconduct if the arbitrator or misconduct in law, an award ought not to be interfered with. Appraisement of evidence by the arbitrator is ordinarily not a matter for the court. In the absence of the award being absurd, reasonableness is not a matter for the court to consider. The object of appointing a technical person to go into the matter is that a person familiar with the trade in question goes into the various aspects of the matter. It is in view thereof that the DDA itself appointed a person of the status of Chief Engineer/ Engineer Member to deal with the matter and it has been observed in DDA v. Bhagat Construction Co.(P)Ltd. and Anr., 2004 (3) Arb.LR 548 that in view of such a technical member going into the matter of dispute, the court should not substitute its own view with that of an arbitrator even if the court comes to a different conclusion until and unless the decision of the arbitrator is manifestly perverse or has been arrived at on the basis of wrong application of law.

3. In view of the aforesaid, learned counsel for the respondent really could not dispute that most of the claims really fell within the purview of the re-appreciation of evidence which cannot be, in my considered view, form the basis of a challenge to an award.

4. Learned counsel for respondent, however, strenuously contended that insofar as the claim no.1 is concerned, the basis for the same is contrary to the judgment of this Court in Wee Aar Constructive Builders v. Delhi Development Authority and Anr., 20

01 IV AD (Delhi) 65.

5. I found force in this submission and thus put it to the learned counsel for the petitioner whether he would like to make submission in respect of this claim so that the matter could be gone into in greater detail. Learned counsel for the petitioner on consideration does not want to press this claim which has been awarded.

6. The second aspect relates to claim no.25 where the submission of the learned counsel for the respondent is that no evidence has been led as required u/s 73 of the Contract Act, 1872 to establish the quantum of damages. Learned counsel for the petitioner however points out that out of the three sub heads under which this claim has been made for damages/losses and infructuous expenditure due to prolongation of the work under the contract beyond the stipulated date of completion, the claims have been rejected under two heads on account of lack of evidence. However, the amount which has been awarded has been granted on the finding of the learned arbitrator that the prolongation was not due to the fault of the petitioner and the basis of calculation is cost index of the CPWD. The award records that the respondent has not raised any objections about the calculations and the only objection raised was that the claimant had failed to produce on record the books of accounts. The learned arbitrator found that he cost of index and the details given as to how the amount have been worked out would Page 2119 suffice. It may be noticed that clause 10CC which has been added in subsequent contracts was not there in the present contract and thus this methodology was adopted by the arbitrator which cannot be faulted.

7. The last question to be considered is in respect of interest since the arbitrator has granted interest at the rate of 18 per cent per annum simple interest. After some hearing, learned counsel for the petitioner confines the claim of interest to 12 percent per annum till date of decree and 9 per cent per annum simple interest from date of decree till date of payment. I consider this a fair suggestion and accept the plea of the learned counsel for the petitioner.

The objections stand disposed of in view of the aforesaid terms.

CS(OS) 498A/1997

In view of the objections having been disposed of, the award dated 14.07.1997 of the Sole arbitrator Sh K D Bali is made rule of the court with the modifications that claim no.1 stands disallowed and the petitioner shall be entitled to interest on the principal amount awarded under the award to the extent of 12 per cent per annum from the stipulated date under the award till the date of decree and 9 per cent per annum simple interest from date of decree till date of payment. Petitioner shall also be entitled to costs.

Decree sheet be drawn up accordingly.